GAO Says Five Days Enough Time to File Protest; GAO B-417491, Warrior Service Company

Protest challenging the terms of a solicitation is dismissed as untimely, where the protester filed its protest after the deadline for quotations, even though it was submitted within 10 days of the solicitation posting date. Although the agency limited the time available for responses, GAO found that five days was sufficient for the protester to file its challenge and declined to make an exception to its timeliness rules.

Warrior Service Company protested the time to submit quotations allotted by the Department of Veterans Affairs for a procurement for brand name furniture, arguing that the RFQ did not provide enough time to prepare a quotation and the brand name or equal requirement unduly restricts competition.

The solicitation was issued on April 3, 2019, and it required vendors to submit quotations by April 8, 2019. Six vendors submitted their quotations on time and WSC filed its protest on April 15, 2019.

The agency argued the protest was untimely, as it was filed after the closing time for quotations. In response, WSC argued that because its protest was filed within 10 days of the RFQ’s posting, it should be considered timely. WSC argued that VA cannot shorten the solicitation response time such that the 10 day time period to file a protest at GAO is eliminated. WCS noted that GAO has previously recognized an exception to its timeliness rules when, as a result of extremely limited time periods, circumstances do not permit filing a protest before the solicitation closes.

GAO acknowledged that in a previous protest, it had made such an exception. However, in that case, the protester received a solicitation amendment that provided its protest grounds only one day before bid opening. GAO found the protester did not have a reasonable opportunity to protest before the solicitation period closed.

GAO found this circumstance inapplicable to WSC’s protest. GAO noted that WSC had five calendar days before quotations were due to submit its protest, in contrast to the shorter time periods which have prompted GAO to make an exception to its timeliness rules. Believing five days was enough time for WSC to prepare its protest, GAO found no compelling reason to make an exception to its rules.

Warrior Service Company is represented by Frank V. Reilly of Frank V. Reilly Attorney at Law. The government is represented by Kathleen Ellis, Department of Veterans Affairs. GAO attorneys Sarah T. Zaffina and Peter H. Tran participated in the preparation of the decision.